M.V. Davis v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR** **&** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932** **WA.No. 1277 of 2008()** **--------------------AGAINST THE JUDGEMENT/ORDER IN OP.10607/2002 Dated 14/03/2008** **....................** ## **APPELLANT(S): PETITIONER** **----------------------------------------** **M.V.DAVIS, AGED 48 YEARS, S/O KOCHU VAREED, RESIDING AT MOOLAN HOUSE, NELESWARAM P.O., KALADY VILLAGE, ALUVA TALUK.** **BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU** ## **RESPONDENT(S): RESPONDENTS** **-----------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST, GOVERNMENT SECRETARIAT, TRIVANDRUM.** **2. THE CONSERVATOR OF FOREST, CENTRAL CIRCLE THRISSUR.** **3. THE DIVISIONAL FOREST OFFICER, MALAYATTOOR, KALADY.** **4. THE DEPUTY TAHSILDAR, REVENUE RECOVERY, ALWAYE.** **GOVERNMENT PLEADER SRI.BENNY GERVASIS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NO. 1277 OF 2008** ## **======================** ## **Dated this the 22[nd] day of February, 2011** ## **J U D G M E N T** ## **J.Chelameswar, C.J.** Aggrieved by the judgment dated 14[th] March 2008 in OP No.10607/2002, the unsuccessful petitioner preferred the appeal. The appellant/petitioner entered into a contract with the respondent, by which appellant acquired right of felling, collection and removal of 366 cashew trees on a specified location, details of which may not be necessary for the purpose of this judgment. The appellant derived the benefit of the contract. In the process, there is an allegation that the appellant cut more than the agreed number of trees illegally and derived an additional benefit, which is not authorised by the contract. By order dated 30[th] of June, 2001, Ext.P4 of the Deputy Forest Conservator of Divisional Forest Office, Malayattoor, the appellant was called upon to pay an amount of ` 2,22,565/- equivalent to the loss suffered by the Department by the illegal felling of the trees. The relevant portion of the order reads as follows:- WA 1277/2008 : 2 : “On assessing the cost of the said trees, sales tax, Forest Development Tax, yield of the trees etc., the department has incurred loss of Rs.2,22,565/- (Rupees two lakhs twenty two thousand five hundred sixty five only). As per contract condition No.23, you are liable to remit the said amount to the department. Therefore, a Chalan for Rs.2,22,565/- is sent herewith which may be paid within specified time and chalan receipt is to be produced in this office, otherwise legal action shall be initiated against you for recovery of the said amount without any further notice.” 2. By another order dated 22[nd] September, 2001, Ext.P6 of the Divisional Forest Officer, it was ordered as follows:- Hence, I, Noyal Thomas, I.F.S, Divisional Forest Officer, Malayattoor, hereby order that the security amount of Rs.8410/- (TSA No.4811) deposited by Sri.M.V.Davis, Moolan House, Neeleswaram, on 8.9.2000 at Kunnathunadu treasury for cutting and removing of 366 cashew trees in 956 cashew plantations in Kalady Range, Karakkadu as per contract No.3/00-01 and its interest is forfeited to the Forest department. The rest of the amount will be recovered by initiating revenue recovery proceedings. 3. Ext.P8 is an order dated 15/3/2002 of the Conservator of Forests, Central Circle, Thrissur. Exts.P9 and P10 are notices issued under the Revenue Recovery Act pursuant to the above mentioned demand of the State. 4. Ext.P1 conferred a right on the appellant to fell, collect and remove 366 cashew trees standing on the alignment area Idamalayar Irrigation Project Canal passing through 1956 Karakkad Cashew Plantation, Kalady Range. Under the said WA 1277/2008 : 3 : contract, appellant was required to work out his right within a period of three months, which expired on 13/12/2000. At the request of the appellant, the period of the contract was extended till 13[th] January, 2001. On the expiry of the said period, the mahazar marked as Ext.P3 was prepared, which was signed by one K.S.Salim, the Deputy Ranger at the relevant point of time exercising jurisdiction over the area covered by the contract in issue. It is specifically recorded in the said mahazar as follows:- _“It is satisfied that no trees are cut or woods collected unauthorisedly trespassing into any area outside the alignment area proposed to be handed over for the canal. Thereafter on examination of the alignment area, it is seen that the boundary stones are intact.”_ 5. However, by communication dated 30[th] June, 2001 (Ext.P4), the Deputy Conservator of Forests called upon the appellant to remit certain amounts, the relevant portion of which is already extracted in the earlier part of this judgment. It is recorded in the said proceeding that there was a report by the Kodanadu Special Forest Protection Force that on an inspection it was found that the appellant unauthorisedly cut and removed 288 cashew trees located beyond the area covered by Ext.P1 contract. Subsequent proceedings dated 22/9/2001 of the Divisional Forest WA 1277/2008 : 4 : Officer informed the appellant that the security amount deposited by the appellant at the time of the execution of Ext.P1 contract is also forfeited. 6. Aggrieved by the above mentioned two communications marked as Exts.P4 and P6 in the instant writ petition, the appellant herein had earlier approached this Court by way of O.P. No.36186/2001, which came to be disposed of by judgment dated 29[th] November, 2001, the operative portion of the judgment reads as follows:- _4. As already stated, the case of the petitioner is that the 1[st] respondent has no jurisdiction to pass an order with respect to a matter covered by Ext.P1 agreement and that if there is any case regarding excess cutting and removal trees, the 1[st] respondent should have refer the matter to the 3[rd] respondent, who is the authority specified in Ext.P1 agreement. Though the petitioner has submitted Ext.P4 objection to Ext.P3 notice, he has not taken the contention regarding arbitration. However, if the petitioner files any representation against Ext.P5 order before the 2[nd] respondent, the said respondent will consider the same and pass appropriate orders taking note of the provisions of Ext.P1 agreement also. The petitioner is directed to file representation within a period of two weeks from the date of receipt of a copy of this judgment, in which case the 2[nd] respondent will dispose of the same within one month thereafter with notice and opportunity to the petitioner. All further proceedings pursuant to Ext.P5 will be deferred for a period of two months._ 7. Pursuant to the above judgment, the appellant herein filed Ext.P7 representation, which is marked as Ext.P7 in the WA 1277/2008 : 5 : instant writ petition. The Conservator of Forests, Trichur after hearing the appellant where the appellant was represented by a counsel, rejected the representation by order dated 15/3/2002. Consequently, two notices Exts.P9 and P10 came to be issued invoking the provisions of the Kerala Revenue Recovery Act and therefore the present writ petition with the prayers as follows:- _“(a) issue a writ of certiorari or other appropriate writ, order or direction, quashing Ext.P4, P6, P8, P9 and P10._ _(b) direct the respondents to refund the security deposit of Rs.8410/- to the petitioner.”_ 8. By the judgment under appeal, the writ petition stood dismissed. Hence the appeal. 9. Learned counsel for the appellant Sri.Babu Karukapadath argued that in view of the judgment of the Supreme Court reported in _**State of Karnataka v. Rameshwara Rice Mills, Thirthahalli**_ (AIR 1987 SC 1359) that the respondent State, which is a party to Ext.P1 contract is debarred from unilaterally making an assessment of the damage allegedly resulting from the breach of the terms of contract by the appellant, and therefore, the entire exercise undertaken by the respondents is required to be declared illegal and void as prayed WA 1277/2008 : 6 : for in the writ petition. In the alternative, learned counsel also submits that, if for any reason, this Court comes to the conclusion that the respondents are legally justified in undertaking the exercise such as the one in question, the decision of the respondents as evidenced by Ext.P8 dated 15/3/2002 is unsustainable in view of the fact that the decision relies upon material which is not disclosed to the petitioner. Further, the evidence which forms the basis for the conclusion that the appellant is responsible for the unauthorised cutting of 288 cashew trees is not made known to the appellant. 10. On the other hand, learned Government Pleader Sri.Benny Gervasis appearing for the respondents submits that in view of the earlier decision of this Court between the same parties with respect to the same dispute in WP(C) No.36186/2001, the appellant is debarred from raising the question of the competence of the authority of the respondents to make an assessment of the damage arising out of the breach of the contract committed by the appellant. We see substantial force in the submission made by the learned Government Pleader. The objection as to the competence of the respondents was available WA 1277/2008 : 7 : even in the earlier round of litigation in the above mentioned OP No.36186/2001. Though it appears from the record that the appellant herein did raise the question of jurisdiction to embark upon such an enquiry, the judgment does not deal with the said question. It is not very clear from the judgment as to why such a situation was brought about. On the other hand, it appears from the said judgment that the respondents took a specific plea that any dispute arising out of the terms of the contract between the parties under the terms of the contract was required to be adjudicated by an arbitration. However, by the said judgment, a direction was given to the respondents to consider the representation, if any, made by the appellant and decide the various questions after giving him an appropriate opportunity. Pursuant to the said direction, the appellant did in fact made a representation to the Conservator of Forests, who incidentally is the Arbitrator contemplated under Clause 44 of Ext.P1 contract. 11. The question is not whether the judgment in OP No.36186/2001 lays down the correct principle of law or not. If for any reason, the appellant believes that the judgment did not deal with the one or some of the issues raised in the writ petition, WA 1277/2008 : 8 : the appellant ought to have carried the matter in appeal and invited a decision in that regard. Admittedly, no such appeal was carried and the judgment became final. In such circumstances, an enquiry once again into the competence of the respondents in our view is barred by a principle of constructive res judicata. 12. Learned counsel for the appellant submitted that on the basis of the two judgments reported in _**Mathura Prasad v. Dossibai**_ (AIR 1971 SC 2355) and _**Isabella Johnson v. Susai**_ (1990(2) KLT 968) where the question is one of inherent lack of jurisdiction, the question of res judicata or constructive res judicata does not arise and such a question could be raised even in collateral proceedings. 13. We are of the opinion that the said two decisions have no application to the issue before us. The above mentioned two decisions deal with the jurisdiction of the Civil Courts for adjudicating certain issues brought before them. They are cases where the situation was one of inherent lack of jurisdiction. The case on hand cannot be described to be a case where the respondents can be described as inherently lacking jurisdiction to examine the question. As already pointed out earlier, the WA 1277/2008 : 9 : contract itself provided for an arbitration clause and the representation pursuant to the directions of this Court even on the earlier round of litigation was in fact made to the officer, who is designated to be the Arbitrator under the provisions of the contract. We therefore reject the first submission made by the learned counsel for the appellant. 14. Coming to the second submission, we have carefully examined Ext.P8 order dated 15/3/2002 containing the decision of the Conservator of Forests pursuant to the representation reported above. Such proceedings refers to certain mahazars drawn on various dates, i.e., 24[th] January, 2001, 25[th] January, 2001 and 16[th] February, 2001. It is not very clear from the proceedings as to who prepared the said mahazars and under what authority of law such mahazars were prepared. Secondly, undisputedly copies of the mahazars are not supplied to the appellant. Therefore, the appellant is totally in darkness regarding the content of the said mahazars on the basis of which respondents come to the conclusion that the appellant alone is responsible for the illegal felling of the trees. It was specifically pleaded in the representation (Ext.P7) at para 8 that “the forest WA 1277/2008 : 10 : area is highly residential and there are about 12 stone quarries in the locality. These people living in the area are fully depend upon the forest for their firewood. If the people cuts unauthorizedly in forest area and removes firewood, the appellant is not liable for the same.” There is no discussion about such an objection in Ext.P8. On the other hand, respondents rely on the fact that the officer who prepared the first mahazar dated 14/1/2001 was kept under suspension and disciplinary proceedings were initiated against him and submitted that it is a factor which would justify the impugned action against the appellant. Unfortunately, such a belief in our opinion cannot be sustained in law. It may be indicative of the dereliction of duty on the part of the officer. It does not necessarily lead to an inference that the appellant alone is responsible for the illegal felling of the trees. 15. In the circumstances, we are of the opinion that the appeal is required to be allowed in the normal course. Having regard to the fact that valuable forest property is allegedly cut and appropriated illegally, we should have granted the liberty to the respondents to direct them to consider a fresh enquiry into the matter if they are so advised, to fix the responsibility. But in WA 1277/2008 : 11 : the instant case, we are of the opinion that such a course would not serve any useful purpose as the incident is more than a decade old and most of the evidence would either have disappeared by now or becomes highly unreliable in view of the long lapse of time. Therefore, we desist from such a course of action. The appeal is allowed. The impugned proceedings are set aside. 16. We are informed that, in view of the pendency of the litigation, the appellant paid the amount pursuant to the impugned proceedings under protest. We direct the respondents to refund the same, but in the circumstances, without any interest. We direct the respondents to refund the above mentioned amount within a period of three months from today. Writ appeal is allowed. **J.CHELAMESWAR CHIEF JUSTICE.** **ANTONY DOMINIC JUDGE.** Rp